This previous week, the University of Chicago’s William Baude joined the “Advisory Opinions” podcast to speak about among the lesser-known elements of the Supreme Court’s observe. During the conversation, he went previous the lesser-known topics and straight to the obscure: DIGs.
DIG stands for “dismissed as improvidently granted,” which is a proper method for the Supreme Court to say that it needs it had by no means granted certiorari in a case. So as a substitute of addressing the deserves, the Court merely dismisses the case from its docket, reinstating the decrease courtroom’s order and opinion. It is successfully a SCOTUS Ctrl + Z.
This mechanism stays obscure as a result of it’s invoked solely sometimes. An article by Prof. Michael Solimine and Rafael Gely discovered that the Court DIGged 155 circumstances from 1954 to 2004, which work outs to about 3.04 circumstances per time period.
Since Solimine and Gely’s dataset ends proper at first of the Roberts Court, I figured I’d compile the same dataset for the Roberts Court and see if something has modified. The compilation is hooked up to the underside of this submit. Some abstract numbers are instantly under.
|1954-2004 Terms||Roberts Court (2005-Present)|
|DIGs per Term||3.04||1.67|
|DIGs per 100 Opinions Issued||2.33||2.12|
|Unanimous DIG %||54%||78%|
|Bare Majority DIG %||11%||16%|
|% of DIGs with Opinion||55%||32%|
Note: For the per Term and Per 100 Opinions statistics, I solely thought-about DIGs from full phrases. That eliminated a single DIG from the present time period. I made up my mind the variety of opinions issued by consulting the incomparable Supreme Court Database and filtering out circumstances that have been dismissed or resolved from the Court’s docket with out an opinion addressing the decrease courtroom’s ruling. For voting percentages, I counted San Francisco v. Sheehan as a ½ case for the reason that Court cut up on whether or not to DIG each questions offered or just one.
Number of DIGs: While DIGs per Term has dropped dramatically, that quantity principally displays the Court’s shrinking docket. The variety of DIGs per 100 Opinions Issued has additionally dropped however not close to as starkly — from 2.33 to 2.12, or about 9%.
i’d anticipate the variety of DIGs to drop extra as the scale of the Court’s docket shrinks. The principle can be that the Court would have extra time to examine a case for car points earlier than granting cert.
And perhaps that has really occurred, simply not at first of the Roberts Court. Swedish rock aficionado and harbinger of terrifying manimals John Elwood has documented well procedural changes at the Court that give it more time to inspect cases for issues that might lead to a later DIG. As he notes, these procedural modifications grew to become most noticeable starting within the 2014 Term.
Using the 2014 Term as a dividing line, we do see a stark distinction within the variety of DIGs. Before the 2014 Term DIGged, the Roberts Court DIGged 16 circumstances or about 2.38 circumstances per 100 Opinions Issued. That per 100 Opinions Issued quantity is almost an identical to the earlier 51 phrases earlier than it. Since the beginning of the 2014 Term, the Court has DIGged eight circumstances or about 1.87 circumstances per 100 Opinions. That is a couple of 21.4% drop in DIGs for the reason that begin of the 2014 Term.
And that drop might be understated. Of the eight circumstances DIGged for the reason that 2014 Term, no less than Four have been DIGged resulting from intervening circumstances that arose after cert was granted or resulting from a celebration trying to vary their principle of the case — developments which might be out of the Court’s management. Only Three of the 16 pre-2014 Term circumstances might be described that method.
So the Court’s procedural modifications that give it extra time to examine for car points appear to be decreasing the frequency of DIGs.
Composition of DIGs: Another stark distinction is how incessantly the Court is unanimous in DIGging a case. The Roberts Court is unanimous in DIGging a case 78% of the time, which is 24 proportion points higher than the 50 12 months interval previous it. The variety of occasions it DIGs by a naked majority (e.g., every time a single vote swing the opposite method would change the consequence) is about flat (11% to 16%). Additionally, the Court is writing opinions in DIGged circumstances much less usually. All this means that the members of the Roberts Court are much less aggressive in utilizing DIGs as a strategic device and as a substitute view it as an institutional device.
What do I imply by strategic device and institutional device?
By strategic, I imply the Justices vote to DIG to attain the top consequence they like in a selected case or on a selected authorized subject. An instance of a strategic DIG could be Boyer v. Louisiana, what place the 5-Four vote alignment roughly displays what a predicted deserves vote would seem like.
By institutional, I imply the Justices vote to DIG (1) to accrete advantages to the Court collectively or (2) in a method that places collective objectives over Justices’ particular person preferences. An instance of institutional DIGs can be a line of cases what place the Court DIGged circumstances after the petitioners modified their principle of the case. By DIGging these circumstances, the Court alerts to the delicate Supreme Court bar that it’ll not tolerate bait-and-switch techniques to advance a consumer’s interest. The members of the bar—whose exchangeable goods with the Court rely upon being trustworthy brokers—then successfully police themselves, permitting the Court to proceed to rely upon the Supreme Court bar for knowledgeable help in resolving circumstances.
Another instance — based mostly solely on my conjecture — of an institutional DIG is First American Financial Corp. v. Edwards. Edwards is without doubt one of the most perplexing DIGs in historical past. The case was a predecessor to Spokeo, Inc. v. Robins, elevating an almost an identical Article III standing subject. Since the case was one about standing, potential car issues — latent points that forestall the Court from reaching the query offered — can be doable however drastically lowered. What makes the DIG so mystifying is that the Court DIGged the case with no opinion on the final day of the time period, 213 days after oral argument. That delay is well past the median (55 days) and common (58.6 days) time between oral argument and a DIG. (The extreme delay isn’t defined solely by Edwards’ early argument date; 40% of Roberts Court DIGs after argument are of circumstances argued between October and November.) And it’s absurd in comparison with different DIGs that always happen inside a pair weeks after argument.
This is what place we hit pure conjecture: If I have been a betting man, I’d wager that draft opinions for Edwards circulated by chambers however no majority might coalesce round a typical. And you possibly can perceive why it could be exhausting to seek out a typical to coalesce round on condition that Spokeo has created a cottage industry of explaining what Spokeo means. Instead of issuing a fractured plurality opinion on probably the most primary jurisdictional requirement (which would force lower courts to figure out which opinion controlled their analysis) I’m guessing the Court simply determined to punt on the difficulty. If my conjecture is correct, then the Justices in Edwards determined that DIGging the case would assist fulfill its function to talk collectively and coherently concerning the regulation, whereas issuing a deserves opinion would undercut that institutional function. Though there are occasions the Court could must subject plurality opinions, I believe that could be a usually optimistic growth.
Regardless of all this evaluation, I believe we will all agree that’s actually extraordinary is that I got through this entire post without a single DIG pun.
Bryan Gividen is a senior affiliate at Vinson & Elkins LLP in Dallas, what place his observe focuses on shareholder and merger litigation and appeals. He studied economics at Brigham Young University earlier than graduating summa cum laude on the William & Mary School of Law. The views expressed listed below are Bryan’s alone and don’t replicate the views of any of his employers or shoppers, previous or current. Follow Bryan on Twitter @BryanGividen.